Judge's first: Case dismissed before going to jury

Michael D. Abernethy / Times-News

Tuesday

Jul 23, 2013 at 12:01 AMJul 23, 2013 at 6:05 PM

GRAHAM — Sometimes it pays to appeal to a higher court.

Moments before a drug charge against Jeffrey C. Fergus was to be decided by a jury Tuesday, the superior court judge in the case dismissed the charge citing lack of evidence. Fergus was appealing a conviction for misdemeanor marijuana possession from Alamance County District Court.

Tuesday’s case marked the first time Superior Court Judge Elaine Bushfan dismissed a charge bound for jurors at the close of evidence.

“I have never in my superior court career done this,” Bushfan, of Durham County, said, after expressing doubts about the case. “At the close of evidence, I must grant the defendant’s motion. This will be the first time in my career that I will dismiss a case at the close of evidence.”

Fergus, of East Parker Street in Graham, pleaded guilty to the charge in district court Jan. 31. He had no prior drug convictions. That plea placed him on deferred prosecution and imposed a year’s probation.

He was charged after Burlington police searched an apartment on LaVista Drive March 20, 2012, and found a small bag of marijuana in a box with a 1994 ID belonging to Fergus. Fergus’s brother’s name, Carl Fergus, was on the lease for the apartment. The Ferguses and two other men in the apartment were charged with drug possession.

Police obtained a search warrant for the apartment after a complaint of cocaine sales there and a confidential informant bought drugs twice from an unidentified man there, Burlington police Cpl. Daniel Spell said.

Spell testified that Carl Fergus and another man were found near an air vent upstairs. Two marijuana joints were later confiscated from that air vent.

Jeffrey Fergus wasn’t at the apartment, but his car was parked outside, Spell testified Tuesday. Water and sewer service for the apartment was registered under Jeffrey Fergus’s name.

At the close of state’s evidence, defense attorney Monica McKinnie made a motion to dismiss citing a lack of sufficient evidence for the possession charge. She argued that a case of “nonexclusive possession,” where other people are near when drugs are found, a strong suspicion of possession wasn’t enough to charge a person.

Alamance County Assistant District Attorney Brooks Stone argued that the evidence was strong enough to proceed to the jury in the light most favorable to the state.